Test 3 review

FCC & Electronic Media Regulation

• The Federal Communications Commission (FCC) regulates nearly all electronic media in the US.
  • Includes content regulation, cell phone providers, cell companies, and long-distance companies.
  • The FCC has extensive power due to its regulation of radio technology.
  • Print media is the primary exception, generally not regulated by the FCC.

Rationale for Broadcast Media Restrictions

• Limited Spectrum/Spectrum Scarcity:
  • The Supreme Court justifies greater speech restrictions on broadcast media due to limited usable frequencies in a given area.
  • Without regulation, a small group could monopolize and control broadcast content.
  • The FCC, with Supreme Court approval, regulates broadcasters more strictly than other media.
  • Spectrum scarcity is a technological reality where the number of usable broadcast frequencies is limited, leading to restricted access for potential broadcasters.

FCC Power Over Indecent Content

• The FCC has the power to ban indecent program content on broadcast media, even if it is not obscene.
• This power is specifically for broadcast media; it does not extend to the Internet, satellite, or cable.
• The rationale for restricting speech is spectrum scarcity, which exists only in broadcast media.
• Other media (Internet, satellite, cable) are not subject to the same limitations because they don't use a limited number of broadcast frequencies.

First Amendment Protection and Strict Scrutiny

• Cable and satellite stations have full First Amendment protection due to the absence of spectrum scarcity.
• If the FCC or Congress wanted to ban indecent content on cable or satellite, they would have to meet strict scrutiny.
• Strict Scrutiny: Requires a compelling governmental interest to justify content-based restrictions on communication, usually resulting in the government losing the case.
• The Internet also has full First Amendment protections.

George Carlin Case

• A radio station broadcast George Carlin's comedy routine featuring words that cannot be said on TV or radio.
• The FCC fined the radio station, not George Carlin.
  • Carlin had a First Amendment right to perform the routine as stand-up, and the recording and sale of the comedy album were protected speech.
  • The issue arose when the radio station played the routine on the air, making it an FCC matter.
• The Supreme Court upheld the FCC's actions, citing spectrum scarcity and the pervasiveness of broadcast media, particularly its accessibility to children.

Safe Harbor

• The FCC has a "safe harbor" period from 10 PM to 6 AM, during which indecency regulations are relaxed.
• This is based on the presumption that children are less likely to be watching TV or listening to the radio during these hours.

Fairness Doctrine

• The Fairness Doctrine required broadcasters to present controversial issues and include contrary viewpoints.
• The FCC eliminated this doctrine a long time ago.
• The Supreme Court upheld the Fairness Doctrine based on spectrum scarcity.
• The spectrum scarcity rationale remains relevant even though the Fairness Doctrine is no longer in effect.

Equal Time Rules

• Equal time rules apply during a specific window before elections (primaries and main elections).
  • Federal elections: 60 days before the election
  • Primaries: 45 days before the election
• If a candidate receives airtime on a station during this window, all other candidates for the same election must be given the same amount of time.
• Qualifications:
  • Applies only to legally qualified candidates (confirmed to be on the ballot).
  • Candidates can be charged for equal time at the lowest rate the station charges for that time slot to non-political advertisers.
• Stations cannot edit or modify the content of what the candidate says.

Exceptions to Equal Time Rules

• News interview programs (e.g., Face the Nation) and general news content do not trigger equal time rights.
• These rules primarily cover political advertising.
• If a station runs content that heavily endorses a candidate (outside of news), equal time may be required.
• The FCC makes decisions about whether equal time needs to be honored in such cases.

"I Approve This Message"

• FCC rules require political ads to include a statement indicating whether the candidate approves the message.
• If the candidate doesn't voice their approval in the ad, it's assumed they did not approve it.
• This rule was implemented to inform voters about which ads the candidate has specifically endorsed.

Internet Content Regulation

• Congress cannot punish the posting of indecent, non-obscene content on the Internet.
  • The Internet is not subject to spectrum scarcity, so indecent content is protected.
  • The Supreme Court has struck down laws attempting to ban indecent or patently offensive material online.
• Congress can prohibit obscene speech on the Internet, as it is not protected under the First Amendment.

Obscenity and the Miller Test

• Obscene speech is unprotected if it meets the Supreme Court's test for obscenity, as set forth in Miller v. California.
• The definition of obscenity is narrow, primarily involving hardcore pornography.
• The government can regulate obscene speech without meeting strict scrutiny.

Cable Television Regulations

• Cable television is not subject to spectrum scarcity.
• Content-based restrictions on cable programs are subject to strict scrutiny.

Copyright Protection

• Copyright protection attaches to an original work as soon as it is fixed in a tangible medium.
• Registration is not required for copyright protection to begin.

First Sale Doctrine

• The first sale doctrine allows the purchaser of a book (or other copyrighted work) to sell or rent that copy.
• This is because the book becomes the property of the purchaser, who can dispose of it as they see fit.
• This doctrine is limited to the specific copy that was purchased.

Circle C Symbol

• The circle C symbol (©) provides notice of a copyright claim.
  • It puts potential infringers on notice that the work is protected.
• Using the symbol can affect damages in infringement cases, especially for willful infringements.

Digital Transmission of Copyrighted Music

• Copyright holders have the right to prevent the digital transmission of a song.
• Congress amended the Copyright Act to clarify that peer-to-peer sharing of copyrighted material is infringement, addressing issues that arose with Napster.

Exclusive Rights of Copyright Holders

• Copyright holders have exclusive rights to:
  • Reproduction (copying)
  • Performance
  • Distribution
  • Creation of Derivative Works
  • Digital Transmission

Derivative Works

• A derivative work draws upon an original work and changes its medium or form of expression (e.g., a book made into a movie).

Transformative Fair Use

• The distinction between a derivative work and a transformative fair use can be blurry.
• Transformative use is judged by whether the original expression of the idea was technologically transformed into a different medium or form of expression.

What is Not Copyrightable?

• An idea itself is not copyrightable.
• Expression of an idea, however, can be copyrighted.
• Copyrightable items include:
  • Sculptures
  • Sound Recordings
  • Dance Routines (if written down)

Duration of Copyright

• For copyrights created after the 1976 Act, the duration is 70 years after the death of the creator/author.
• After this period, the work enters the public domain, and no one can claim copyright.

Fair Use Defense

• A fair use defense can be raised in cases where significant parts of a copyrighted song are used to create a parody or commentary.
• Parody is a common example of fair use.

Kinko's and Copyright Infringement

• Copy services like Kinko's cannot claim fair use if they copy copyrighted material for profit.
• They must be careful to avoid enabling or participating in copyright infringement.
• Many copy services have policies and signage to avoid copying copyrighted works.